Is Special Ed Too Litigious or Not Litigious Enough?

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The number of due process hearings in special ed disputes has increased nationwide over the last two decades. This link is to a article discussing the topic. The article quotes Professor Perry Zirkel for some of the reasons for the increase, including the recognition of autism and ADHD as disabilities for purposes of eligibility.

I have great respect for Professor Zirkel and I generally agree with him. One area where we differ, though is whether the special ed hearing system is overlegalized, as he contends. I contend that in the ten busiest jurisdictions, the system probably is overlegalized. In other places, especially in rural or isolated areas of the country, however, I think that the system is underlegalized. I am active in ACRES, the rural special education organization, and many of their members agree with me on this point. There are many places where parents, and sometimes even school districts, cannot find a lawyer familiar with special ed law. As the article above suggests, the income of the parents may be the best indicator of whether they can assert their rights under the procedural safeguards.

I don't think that increasing the number of due process hearings is a goal, but if the problem is that there are parts of the country where legal representation is unavailable, that is not healthy. Similarly, if there are people not assessing procedural safeguards because they are not wealthy, maybe we should design a new and different system.

What has been your experience? What do you think?

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